More on the Kagan Confirmation Hearings: Is She Really a Consensus Builder? (July 13).

Throughout the Senate Judiciary Committee hearings two weeks ago, U.S. Supreme Court nominee Elena Kagan was labeled a  "consensus builder"  by her supporters.

As noted in our earlier posts, there was no shortage of arbitration rhetoric at  the hearings, with Democratic senators using their questioning to voice their strident opposition to  the Court’s arbitration decisions, both new and historic.

But Kagan, who is U.S. Solicitor General, entered the hearings as a conciliator.  When he introduced her as his nominee, President Obama said she was consensus builder. Details here The theme recurred in the hearings, mostly as part of the Democrats’ speeches praising her.  

On June 28, the first day of hearings, Sen. John Kerry, D., Mass., assessed Kagan’s ability to find congressional committee votes to move a stalled tobacco bill, more than a decade ago when she was point person for the Clinton administration.  

Kerry said that Kagan “help[ed] break through a stalemate” that was “a difficult issue for both [Senate] caucuses.” Kerry explained that Kagan “worked day and night, equally with both sides of the aisle, working every angle, thinking through every single approach.”

Kerry said that Kagan’s consensus-building abilities were valuable.  He continued:

It was classic Elena. She saw a path forward when most people saw nothing but deadlock. She was tough and tenacious in argument when necessary, but she also knew when it was necessary to strike a compromise. She had a knack for knowing how to win people over, an ability to make people see the wisdom of an argument.

Kerry said the result was  “. . . a mark of bipartisanship, [and] consensus building that few believed was possible” 

He concluded, “That's what I believe Elena Kagan will bring to the court."

Furthering that point, Sen. Richard J. Durbin, D., Ill., stated the same day:

The Court needs a person who has an ability to build consensus and find common ground. Elena Kagan, you are such a person. As a solicitor general of the United States, you have defended bipartisan laws like McCain-Feingold campaign finance, and you have deftly balanced competing interests within the federal government.

On the third day, Kagan responded to the repeated consensus references, and discussed the qualities she would bring to the Court:

[I] do believe that one of the benefits of narrow decisions, of approaching one case at a time and in each case trying to think of the narrowest way to decide the case, is to enable consensus. And consensus is in general a very good thing for the judicial process and for the country.

Back on Day 1, Wisconsin Democrat Sen. Russ Feingold spoke about how Kagan’s experience as a consensus builder would affect the Court:

[I]t's my hope is that your diverse experiences, your thoughtfulness and openness, your talent for consensus building will allow you to see the long-term dangers to the Court and . . . to convince your colleagues to avoid making similar mistakes in the future.

The Judiciary Committee today delayed its vote on the Kagan nomination until next week, when the committee is expected to send the nomination to the full Senate. 

The Washington Post's transcript for Day 1 of the hearings can be found here; the Day 3 transcript is here.

--By Diana Gesualdi, CPR Intern

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